"A" for Originality, "F" for Substance

The RIAA continues to sue its customers — a brilliant business strategy, to be sure — for illegal file-sharing on networks like KaZaA. A New Jersey woman is suing back:

The music industry considers Michele Scimeca a pirate. The Morris County mom has her own term for record executives:

Racketeers.

In what legal experts described as a novel strategy, Scimeca is citing federal racketeering laws like the one that jailed mob boss John Gotti to countersue record labels that accused her in December of sharing some 1,400 copyrighted songs over the Internet.

She’s suing under the Racketeering Influenced & Corrupt Organizations Act (RICO), claiming that the RIAA’s practice of sending out “nasty-grams” to file-sharers, asking the accused to settle or be sued, amounts to extortion:

Labels are using “scare tactics (that) amount to extortion” in efforts to extract settlements, Scimeca alleges in legal papers sent to the U.S. District Court in Newark.

“They’re banding together to extort money, telling people they’re guilty and they will have to pay big bucks to defend their cases if they don’t pony up now. It is fundamentally not fair,” Scimeca’s lawyer, Bart Lombardo, said yesterday. The Cranford attorney said he occasionally downloads songs for personal use and sees nothing wrong with that.

Personally, I would love to see Scimeca prevail; I think the music industry’s handling of this matter has been at once heavy handed and futile. But her legal theory, while original, is crap. Under RICO, you have to show four things to recover: (1) conduct (2) of an enterprise (3) through a pattern of (4) racketeering activity. Ms. Scimeca’s claim probably meets the first three, but isn’t within a stone’s throw of the fourth.

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The problem is that the RIAA is doing nothing unlawful by suing for copyright infringement for file sharing. Indeed, it will likely prevail at trial. No unlawful activity, no racketeering. The letters themselves, as the article points out, are likely protected under the First Amendment.

Practically speaking, letters saying “give us what we want or we’ll sue” are almost always the first step in litigation, because plaintiffs are likely better off financially (at least, the ones paying by the hour) and emotionally if they settle early, even if the amount is less than they might get from a jury.

Ironically, Mr. Lombardo is suing the RIAA for the type of letter that I’m sure he’s written on behalf of clients countless times. He could get sanctioned. He’s also an idiot for publicly admitting that he downloads music. What’s the over/under for the number of days until he is served with a summons?

–This entry, which is in no way to be construed as legal advice, has been brought to you by Robb Kestner of Running at the Mouth.